92 Decision Citation: BVA 92-06066
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 91-37 686 ) DATE
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THE ISSUE
Entitlement to an evaluation in excess of 10 percent for
residuals of frostbitten feet.
REPRESENTATION
Appellant represented by: Division of Veterans Affairs,
North Carolina
ATTORNEY FOR THE BOARD
R. E. Coppola, Associate Counsel
INTRODUCTION
The veteran served on active duty from March 1950 to March
1953.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a rating decision of November 1990
from the Winston-Salem, North Carolina, Regional Office
(RO). The notice of disagreement was received on December
6, 1990. The statement of the case was issued on December
20, 1990. The substantive appeal was received on February
15, 1991. By a May 1991 rating determination, the RO
confirmed and continued the prior denial. Thereafter, a
supplemental statement of the case was issued on May 10,
1991. The appeal was docketed at the Board on July 25,
1991. The veteran has been represented during this appeal
by the Division of Veterans Affairs, North Carolina. The
procedural requirements have been completed and the case is
now ready for appellate review.
REMAND
The veteran seeks entitlement to an evaluation in excess of
10 percent for residual disability resulting from his
service-connected frostbitten feet. In support of his
claim, the veteran submitted a copy of a November 1991
private clinical evaluation report, conducted by Thomas W.
Price, IV., D.P.M. A review of the record shows that the RO
did not consider this evidence in its final determination,
and there is no indication that the veteran has waived his
right to have the evidence considered.
The VA has a duty to assist the veteran in the development
of facts pertinent to his claim. 38 U.S.C. § 5107(a);
38 C.F.R. § 3.103(a) (1991). Under the circumstances of
this case, we are of the opinion that additional development
is required. Accordingly, the case is REMANDED for the
following actions:
1. The veteran should be contacted and
requested to specify whether he is
currently receiving private clinical
treatment for his frostbitten feet, and,
if so, he should specify when, where, and
by whom he has received treatment for his
condition, and he should either submit
this information or execute and submit an
appropriate form giving his consent for
the release to the VA of any private
clinical records.
2. If the veteran indicates that
additional clinical evidence is
available, the RO should utilize all
reasonable means available to obtain
copies of these clinical records. The RO
should also secure the complete inpatient
and outpatient VA treatment records from
April 1991 to the present, which are not
currently part of the record. Any
information obtained should be made part
of the claims folder.
3. The veteran should then be afforded a
special VA examination, by a physician
who has not previously examined the
veteran, in order to determine the
current residual disability resulting
from his frostbitten feet. The
examination should include all appropriate
testing and evaluations, and the findings
should be reported. The claims folder
should be made available for review by
the physician prior to the examination.
Following completion of these actions, the RO should review
all the evidence, including the November 1991 examination
report, and determine whether the veteran's claim may now
be granted. If the veteran is dissatisfied with the
determination, in whole or in part, the veteran and his
representative should be provided with an appropriate
supplemental statement of the case, and the case should be
returned to the Board for further appellate consideration.
No action by the veteran is required until he is contacted
by the RO. This panel intimates no opinion, either legal or
factual, as to the disposition warranted in this case
pending completion of the requested development.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
JANE E. SHARP
PHILIP E. WRIGHT
*38 U.S.C. 7102(a)(2)(A) (formerly 38 U.S.C. 4002(a)(2)(A))
permits a Board of Veterans' Appeals Section, upon direction
of the Chairman of the Board, to proceed with the
transaction of business without awaiting assignment of an
additional Member to the Section when the Section is
composed of fewer than three Members due to absence of a
Member, vacancy on the Board or inability of the Member
assigned to the Section to serve on the panel. The Chairman
has directed that the Section proceed with the transaction
of business, including the issuance of decisions, without
awaiting the assignment of a third Member.
Under 38 U.S.C. § 7252 (1989) (formerly § 4052, recodified
in 1991), only a decision of the Board of Veterans' Appeals
is appealable to the United States Court of Veterans
Appeals. This remand is in the nature of a preliminary
order and does not constitute a decision of the Board on the
merits of your appeal.